Blackwell v. Bishop, Jr. et al
Filing
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MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 09/04/2014. (jb3, Deputy Clerk)(c/m 09/04/2014)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JERMAINE BLACKWELL, #317448
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v.
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FRANK B. BISHOP, et al.
CIVIL ACTION NO. RDB-14-1538
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*****
MEMORANDUM OPINION
Petitioner Jermaine Blackwell (“Blackwell”), a state inmate incarcerated at the North Branch
Correctional Institution, filed the instant self-represented Petition for habeas corpus relief pursuant
to 28 U.S.C. § 2254 to challenge his 2003 convictions in the Circuit Court for Baltimore City.
Respondents have filed a court-ordered Limited Response addressing the timeliness of the Petition.
ECF No. 5. Blackwell, who was granted additional time to file a Reply, has not done so.1 Upon
review of the pleadings and exhibits, the Court finds no need for an evidentiary hearing. See 28
U.S.C. § 2254(e)(2); Rule 8(a), Rules Governing Section 2254 Cases in the United States District
Courts. For reasons that follow, the Court concludes that the Petition is time-barred, and it will be
denied and dismissed by separate Order.
I. Procedural History
In November of 2003, Blackwell was tried and convicted by a jury in the Circuit Court for
Baltimore City of first-degree felony murder, second-degree murder, three counts of illegal use of a
handgun in the commission of a crime of violence, three counts of burglary, armed robbery, robbery,
two counts of first-degree assault, three counts of second-degree assault, wo counts of conspiracy,
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By Order dated July 30, 2013, the Court granted Blackwell an additional twenty-eight
(28) days to explain why his § 2254 petition should not be dismissed as time-barred. See ECF No. 8.
and theft of property valued at less than $500.00. On December 13, 2003, he was sentenced to
serve a life, plus 135 year term in the Maryland Division of Correction. ECF No. 5 at Exs. 1-3; Ex.
4 at p. 2, n.1. The judgment was affirmed by the Court of Special Appeals of Maryland on October
13, 2005, and Blackwell’s application for writ of certiorari was denied by the Court of Appeals of
Maryland on January 12, 2006. Id. at Ex. 4. Wallace did not seek review in the U.S. Supreme Court
and his convictions became final for purposes of direct review on April 12, 2006, when the ninetyday time period for seeking Supreme Court review expired.
According to the record, on February 27, 2007, Blackwell filed a post-conviction petition,
which was withdrawn at his request on July 20, 2007. Id. at Exs. 1-3. On July 9, 2012, Blackwell
filed another post-conviction petition. Id. The Circuit Court denied relief on October 23, 2013. Id.
Blackwell’s application for leave to appeal was summarily denied by the Court of Special Appeals
of Maryland on April 24, 2014. Id. at Ex. 5.
II. Statute of Limitations
Since April 24, 1996, a one-year statute of limitations applies to state prisoners filing
petitions for federal habeas relief in non-capital cases. See 28 U.S.C. § 2244(d).2 This one-year
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This section provides:
(1)
A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of
a State court. The limitation period shall run from the latest of(A)
the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B)
the date on which the impediment to filing an
application created by State action in violation of the constitution
or laws of the United States is removed, if the applicant was
prevented from filing by such State action;
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period is tolled while properly filed post-conviction proceedings are pending.
III. Analysis
Affording the Petition the most generous of filing dates, it is deemed as filed by Blackwell
on May 5, 2014, the date on which it was signed and presumably deposited with prison authorities.3
See Houston v. Lack, 487 U.S. 266 (1988); United States v. Dorsey, 988 F. Supp. 917, 919-920 (D.
Md. 1998) (holding a petition shall be deemed to have been filed on the date it was deposited with
prison authorities for mailing under the Aprison mailbox@ rule.)
Blackwell’s one-year limitations period under 28 U.S.C. § 2244(d) began to run on April 13,
2006. The one-year period was tolled on February 27, 2007, when he filed his first post-conviction
petition in the Circuit Court for Baltimore City. At that juncture, over ten months of the one-year
period had passed. The one-year limitation period did not recommence until July 21, 2007, the day
after his request to voluntarily withdraw the post-conviction petition was granted. As Blackwell
did not refile a post-conviction petition until July 9, 2012, the remaining portion of the one year
(C)
the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D)
the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
(2)
the time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.
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In an ideal world, the Petition’s envelope would be stamped by North Branch Correctional
Institution personnel as “received by prison mailroom” on a certain date. The Maryland Division of
Correction does not provide such a franked designation. The Petition was received by the Clerk on May 9,
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period was allowed to run unchecked for approximately five years. Consequently, this habeas
Petition was filed outside the statutory limitations period and is time-barred.
Blackwell claims that the statute of limitations period was statutorily tolled under 28 U.S.C.
§ 2244(d) due to the pendency of his March 16, 2004 motion for modification/reduction of sentence,
which was denied on July 26, 2012. ECF No. 1, p. 3. Respondents, however, correctly observe that
Blackwell’s modification of sentence motion, filed pursuant to Maryland Rule 4-345, did not operate
to toll the limitations period of § 2244(d). See Roberts v. Maryland, Civ. No. JKB–11–1227, 2013
WL 5882786, at *2–4 (D. Md. Oct. 28, 2013); Tasker v. State, Civ. No. AW–11–1869, 2013 WL
425040, at *7 (D. Md. Jan. 31, 2013) aff'd, 517 F. Appx. 172 (4th Cir. 2013), reh’g denied June 3,
2013 (finding Tasker waived Fourth Circuit review of issue by failing to include it in appellate
brief).
The one-year time period may be equitably tolled in limited circumstances. See Harris v.
Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (one-year limitations period subject to equitable
tolling); see also Wall v. Kholi, 131 S.Ct. 1278, 1283 (2011). In order to be entitled to equitable
tolling, a petitioner must establish that either some wrongful conduct by respondents contributed to
the delay in filing and completing state post-conviction review, or that circumstances beyond his
control caused the delay. See Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003); Harris, 209 F.3d at
328. “[A]ny resort to equity must be reserved for those rare instances where ... it would be
unconscionable to enforce the limitation period against the party and gross injustice would result.”
Id. Further, to be entitled to equitable tolling a petitioner must show: “(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented
2014. It bears a signature date of December 5, 2014, and shall be reviewed as filed on that date.
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timely filing.” Holland v. Florida, __ U.S. __, 130 S. Ct. 2549, 2555 (2010), citing Pace v.
DiGulielmo, 544 U.S. 408, 418 (2005). In this case, however, Blackwell has neither asserted, nor do
the pleadings suggest, any circumstances that justify equitable tolling. Accordingly, the Petition will
be denied and dismissed with prejudice by separate Order.
In Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme Court held that “[w]hen the district
court denies a habeas petition on procedural grounds without reaching the prisoner's underlying
constitutional claim, a COA [certificate of appealability] should issue when the prisoner shows, at
least, that ... jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484. Blackwell does not satisfy this standard, and the Court
declines to issue a certificate of appealability.
Date: September 4 , 2014
________/s/_______________________
RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE
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